Roe v. Wade was the 1973 Supreme Court decision that recognized a constitutional right to abortion under the Due Process Clause of the 14th Amendment, and it governed U.S. abortion law until the Supreme Court overturned it in 2022 in Dobbs v. Jackson Women’s Health Organization. Since Dobbs, there is no federal constitutional right to abortion. Whether the procedure is legal, and under what conditions, now depends entirely on state law. As of early 2026, thirteen states enforce near-total bans, roughly nine states and the District of Columbia impose no gestational limits, and the rest fall somewhere in between.
What Roe v. Wade Decided in 1973
The case began in 1970, when a pregnant woman named Norma McCorvey, suing as Jane Roe, challenged Texas laws that criminalized abortion except to save the mother’s life. Henry Wade, the Dallas County District Attorney, defended the statutes.1Supreme Court of the United States. Roe v. Wade
The Court ruled 7-2 that the 14th Amendment’s protection of personal liberty includes a right to privacy broad enough to cover a woman’s decision whether to end a pregnancy.2Justia. Roe v. Wade, 410 U.S. 113 (1973) The word “privacy” does not appear in the Constitution, but the Court drew on its 1965 ruling in Griswold v. Connecticut, which had located zones of privacy in the combined effect of several amendments.3Justia. Griswold v. Connecticut, 381 U.S. 479 (1965)
The right was not absolute. To balance individual liberty against state interests in maternal health and potential life, the Court built a trimester framework. In the first trimester, the decision belonged to the woman and her physician with essentially no state interference. In the second, states could regulate to protect maternal health. In the third, once the fetus approached viability, states could ban the procedure outright, but any ban had to include an exception to preserve the life or health of the mother.1Supreme Court of the United States. Roe v. Wade
How Casey Modified Roe in 1992
Nearly two decades later, Planned Parenthood of Southeastern Pennsylvania v. Casey preserved Roe’s central holding but replaced the trimester framework with a more flexible test. The new standard asked whether a state regulation placed an “undue burden” on someone seeking an abortion before viability, meaning a substantial obstacle in her path.4Justia. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)
Viability, generally around 24 weeks of gestation, became the key dividing line rather than a fixed trimester. Applying the new standard, the Court upheld Pennsylvania’s informed consent requirement and 24-hour waiting period but struck down a provision requiring married women to notify their husbands, finding it a substantial burden on women in abusive relationships. Casey gave states more room to regulate earlier in pregnancy, and its undue burden standard governed abortion law for the next thirty years.
How Dobbs Overturned Roe in 2022
In June 2022, the Supreme Court decided Dobbs v. Jackson Women’s Health Organization, a challenge to a Mississippi law banning most abortions after fifteen weeks. Rather than apply the undue burden test, the majority reexamined whether the Constitution protects a right to abortion at all and concluded that it does not.5Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022)
Writing for five justices, Justice Samuel Alito reasoned that abortion is not mentioned in the Constitution and is not implicitly protected by any provision. To qualify as a protected liberty under the Due Process Clause, a right must be “deeply rooted in the Nation’s history and traditions.” The majority found that abortion failed that test, pointing out that by 1868, when the 14th Amendment was ratified, three-quarters of the states had made abortion a crime at any stage of pregnancy.6Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization – Opinion of the Court
The Court also rejected stare decisis, the principle that prior decisions should generally stand. The majority called Roe “egregiously wrong from the start,” described its framework as unworkable, and said it had inflamed rather than settled the national debate.7Library of Congress. Constitution Annotated – Fourteenth Amendment Overruling both Roe and Casey eliminated the federal viability line and returned regulatory authority to the states.
What the Dobbs Dissent Argued
Justices Breyer, Sotomayor, and Kagan issued a joint dissent rejecting the majority’s reasoning at every level. They argued that the right to choose an abortion sits within the same constitutional liberty that protects contraception, family decisions, and marriage, and that the majority gave no principled reason to treat abortion differently.8Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization – Dissenting Opinion
The dissent emphasized the uneven consequences of the ruling. “Women of means will still be able to travel to obtain the services they need,” the dissenters wrote. “It is women who cannot afford to do so who will suffer most.” They noted that women below the federal poverty line experience unintended pregnancies at five times the rate of higher-income women and make up nearly half of those seeking abortion care.8Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization – Dissenting Opinion
They also warned that anchoring rights to 1868 understanding threatened other decisions built on the same due process reasoning, including contraception and same-sex marriage. On stare decisis, they wrote plainly: “The Court reverses course today for one reason and one reason only: because the composition of this Court has changed.”
Where Abortion Is Legal Now
With federal constitutional protection gone, the legal picture varies sharply by state. As of early 2026, thirteen states enforce near-total bans with narrow exceptions that differ by jurisdiction. Roughly nine states and the District of Columbia impose no gestational limits. Everywhere else, restrictions kick in at various points between six and around twenty-six weeks.
Several of the current bans came from “trigger laws” written to take effect automatically if Roe were overturned. Others were enacted after Dobbs or revived from statutes that had sat dormant. Criminal penalties for providers range from a few years in prison in some states to sentences up to life imprisonment and fines as high as $100,000 in others.
Ballot measures have pushed in the other direction. In 2022 and 2023, voters in California, Michigan, Ohio, and Vermont amended their state constitutions to protect abortion rights. In 2024, seven more states did the same: Arizona, Colorado, Maryland, Missouri, Montana, Nevada, and New York. Missouri’s vote stood out because the state had one of the strictest bans in the country before voters reversed course.
Emergency Care and EMTALA
One flashpoint after Dobbs involves the Emergency Medical Treatment and Labor Act, the federal law requiring Medicare-funded hospitals to stabilize patients in medical emergencies. The Biden administration argued EMTALA required hospitals to perform abortions in emergencies even in states with bans, because federal law overrides conflicting state law. Idaho challenged that interpretation in Moyle v. United States.
In June 2024, the Supreme Court dismissed the case without deciding the underlying question and sent it back to the lower courts. That reinstated an order blocking Idaho from enforcing its ban when a pregnancy termination was needed to prevent serious harm to the patient’s health.9Supreme Court of the United States. Moyle v. United States – Per Curiam Opinion
The federal position shifted in 2025. The Department of Health and Human Services rescinded its 2022 guidance reinforcing EMTALA’s application to pregnant patients needing emergency abortion care.10Centers for Medicare and Medicaid Services. CMS Statement on Emergency Medical Treatment and Labor Act (EMTALA) The Department of Justice dropped its challenge to Idaho’s ban. HHS Secretary Robert F. Kennedy Jr. stated in a June 2025 letter that EMTALA “continues to ensure pregnant women facing medical emergencies have access to stabilizing care,” but rescinding the pregnancy-specific guidance left the practical meaning ambiguous. The question of whether EMTALA requires emergency abortion care remains unresolved.
Even where states allow medical emergency exceptions, the statutory language often leaves physicians uncertain. Common phrasing requires a “life-threatening physical condition” placing the patient at “risk of death” or “serious risk of substantial impairment of a major bodily function.” Physicians report hesitating to intervene in deteriorating pregnancies for fear that a prosecutor or jury will later disagree with their judgment. Some state courts have started clarifying these standards. A Texas Supreme Court decision found that preterm premature rupture of membranes can qualify as a medical emergency even before signs of infection appear.
Medication Abortion and the Comstock Act
Medication abortion, using mifepristone and misoprostol, accounts for a large share of U.S. abortions and has become a major site of litigation. Because the drugs can be prescribed by telehealth and mailed, states with bans have argued that mail delivery lets residents evade state law.
In 2024, the Supreme Court unanimously ruled in FDA v. Alliance for Hippocratic Medicine that the groups challenging the FDA’s approval of mifepristone lacked standing. That preserved the FDA’s current rules allowing telehealth prescriptions and mail delivery, but it did not decide the underlying legal questions.11Supreme Court of the United States. FDA v. Alliance for Hippocratic Medicine – Opinion of the Court
Louisiana then filed its own challenge, and the Fifth Circuit ruled that the FDA’s telehealth and mail rules had “opened the door” for mifepristone to reach patients in states where abortion is banned. In May 2026, the Supreme Court issued an order continuing to block the Fifth Circuit’s ruling while litigation proceeds, so mifepristone can still be mailed for now. Justice Clarence Thomas dissented, arguing that mailing mifepristone for abortion violates the Comstock Act, an 1873 federal law criminalizing the mailing of drugs intended to produce an abortion. No majority of the Court has adopted that view, but the Comstock Act remains a live issue that could reshape medication abortion access if a future case reaches the merits.
Shield Laws and Interstate Conflicts
Roughly eighteen states have enacted shield laws to protect abortion providers from legal consequences imposed by other states. These laws answer a genuinely new question: when a physician in a state where abortion is legal treats a patient who traveled from a state where it is banned, whose law controls?
Shield laws take several forms. Some bar state agencies from cooperating with out-of-state investigations into care that was lawful where it occurred. Others prevent medical boards from disciplining providers for lawful care. Several treat telehealth appointments with out-of-state patients as occurring in the provider’s home state, shielding them from prosecution in the patient’s state. In one case, a New York court blocked the Texas Attorney General from enforcing legal consequences against a New York physician who prescribed mifepristone by telehealth to a patient in Texas.
Their durability has not been fully tested. The Constitution’s Full Faith and Credit Clause generally requires states to honor other states’ legal proceedings, and the Extradition Clause requires states to surrender individuals charged with crimes elsewhere. Whether those provisions override shield laws is an open question that could reach the Supreme Court.
Interstate Travel for Abortion Care
Millions of people now cross state lines for abortion care, and several states have considered legislation aimed at deterring that travel. Whether a state can punish its own residents for obtaining a legal medical procedure in another state is a constitutional question without a clear answer.
Legal scholars have pointed to the Privileges and Immunities Clause and the dormant Commerce Clause as possible grounds for challenging travel bans, but both theories have limits. A 2023 Supreme Court decision in National Pork Producers Council v. Ross narrowed the extraterritoriality doctrine that might otherwise have applied. A proposed federal Freedom to Travel for Health Care Act would have explicitly guaranteed the right to cross state lines for abortion care, but it was blocked in the Senate in 2022 and has not been enacted. No court has yet ruled definitively on whether a state can penalize residents who travel elsewhere for a legal abortion, and until a case squarely presents the question, that right remains assumed but formally untested.